Madras High Court
Kv Enterprises Represented vs Sakthivel on 21 November, 2019
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
CMA.No.2741 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2019
CORAM:
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
CMA No.2741 of 2018
and
CMP Nos.20794 and 20795 of 2019
KV Enterprises represented
by its Partner P.Sujay
Carrying of business at
No.727, Cross cut Road,
Coimbatore-641 012. ... Appellant
.Vs.
Sakthivel
Proprietor of M/s Good Luck Homes Decors,
Old No.158, New No.112,
Dr.Radhakrishnan Road, Tatabad,
Gandhipuram, Coimbatore. ... Respondent
PRAYER: Civil Miscellaneous Appeal filed under order LXIII Rule of
C.P.C., to set aside the impugned order dated 20.12.2017 passed in
I.A.No.233 of 2017 in O.S.No.71 of 2017 pending on the file of the
learned III Additional District and Session Judge at Coimbatore and
allow this Civil Miscellaneous Appeal with Costs.
For Appellant : Mr.Adeesh Anto
For Respondent : Mr.A.P.Rajaprabhu for Caveator
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CMA.No.2741 of 2018
JUDGEMENT
The Civil Miscellaneous Appeal has been filed by the appellant/plaintiff in O.S.No.71 of 2017 pending before the learned III Additional District and Sessions Judge at Coimbatore, challenging the impugned order dated 20.12.2017 passed in I.A.No.233 of 2017 in O.S.No.71 of 2017.
2.The case of the appellant is that the appellant was engaged in the business of Designing, manufacturing, fabricating and marketing aluminium channels suitable to be fitted for insect screen doors and windows under various brand names. The appellant herein through its own endeavour and artistic work invents artistic aluminum channels for easy and better performance of the Screen Doors and Windows. The experience gained over long period in this field of work, through its inventions, industrial engineering and drawings and fabrication works and he had developed unique method for easy fitting of the said aluminum Channels. He also obtained Certificate of Registration of Design from the Patent Office, Government of India Vide Design No.266582 dated 09.10.2014 for the design of Anit Fly Screen Door vide No.48848 issued on 27.11.2015. The appellant had in March 2015, applied for a Copyright in the Artistic work relating to the drawings under the http://www.judis.nic.in 2/7 CMA.No.2741 of 2018 tittle "Magpro Smart Door, Magnetic Insect Screen Door System", for its channel drawings under the Copyrights Act 1957 Vide Diary No. (1) 2758/2015-CO/A, (2)2756/2015-CO/A (3)2763/2015-CO/A (4) 2761/2015-CO/A in the O/o the Registrar of Copyrights at New Delhi.
3.The appellant has been applying its unique innovations, fabrications in manufacturing the aluminium channels for more than 5 years now, and it has become popular among the businessmen, interior decorators and public. The appellant has therefore earned a very good reputation and good will for its products. The respondent had purchased the appellant's products viz. Magpro Magnetic Insect Screen Window System in May 2015 allegedly for retail sale. The respondent had by employing the technique "Reverse Engineering"
dismantled the appellant's product and illegally and unauthorizedly copied the manner in which the afore said product was manufactured fabricated by the appellant. The appellant further submitted that it received complaints from its customers that the appellant's product of inferior quality was being fabricated and sold in the market by the respondent herein at cheaper rates. The Appellant is the original owner of Artistic work, viz. the drawing for the aluminium channel under the name and style Magpro Magnetic http://www.judis.nic.in 3/7 CMA.No.2741 of 2018 Insect Screen Window system, and as the prior user has sought for registration of Copyright, Smart door Magnetic Insect Screen Door System, the appellant in order to protect its rights in the interregnum issued notice dated 11.07.2016 to the respondent herein calling him to forthwith cease and desist from dealing with the pirated version of their product and also claimed damages. The respondent issued a reply containing vague denials that he was not dealing with the appellant's product. The respondent continued to duplicate the appellant's product with impunity. In order to protect their rights to the said Artistic Work, the appellant filed O.S.No.71 of 2017 for permanent injunction, restraining the respondent from copying copying the manufacturing and marketing the Artistic design belonging to the appellant herein. The appellant also filed I.A.No.233 of 2017 praying for an order of temporary injunction restraining the respondent from copying the manufacturing and marketing the Artistic design belonging to the appellant. The learned Trial Court Judge, discriminated to grant interim injunction to protect the rights of the appellants. Hence, the present Civil Miscellaneous Appeal is filed.
4.The learned counsel for the respondent has also filed a counter affidavit stating that the respondent is doing retail business http://www.judis.nic.in 4/7 CMA.No.2741 of 2018 in the products such as Netlon, curtains, wood and Aluminum profile and channels of various brands. As alleged by the appellant he has not infringed, duplicated their design or copy right. He further submitted that there was no proof filed to copyright the designs of the appellant and there is no proof to show that complaints have been received from the customers against him. The Trial Court also held that the Copy Right Application is also pending before the concerned authorities. It was brought to the knowledge of this Court that during pendency of the present Appeal, the appellant seems to have got the registration under the Copy Rights Act and the appellant is intending to initiate further action against respondent, the appellant can proceed based on the present copy right registration, if he denies to do so if any fresh material produced by the appellant or respondent herein has to be dealt with by the trial judge when parties lead proper evidence.
5.Considering the above facts and circumstances of this case, this Court is inclined to remit back the case to the lower Court Viz. learned III Additional District Judge, Coimbatore, and the appellant is directed to produce all the material evidence before the Trial Court within a period of one week from the date of commencement of proceedings after the receipt of a copy of this order and the said http://www.judis.nic.in 5/7 CMA.No.2741 of 2018 Court shall pass an appropriate order on merits and in accordance with law as expeditiously as possible.
6.with the above directions, the Civil Miscellaneous Appeal is disposed of. No Costs. Consequently, the connected miscellaneous petitions are closed.
21.11.2019 Index : Yes / No Internet : Yes / No tta To,
1.Sakthivel Proprietor of M/s Good Luck Homes Decors, Old No.158, New No.112, Dr.Radhakrishnan Road, Tatabad, Gandhipuram, Coimbatore.
2.Learned III Additional District and Session Judge, Coimbatore.
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